Radosevich v. Industrial Commission

856 N.E.2d 1, 367 Ill. App. 3d 769, 305 Ill. Dec. 469, 2006 Ill. App. LEXIS 993
CourtAppellate Court of Illinois
DecidedSeptember 19, 2006
Docket4-05-0467
StatusPublished
Cited by13 cases

This text of 856 N.E.2d 1 (Radosevich v. Industrial Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Radosevich v. Industrial Commission, 856 N.E.2d 1, 367 Ill. App. 3d 769, 305 Ill. Dec. 469, 2006 Ill. App. LEXIS 993 (Ill. Ct. App. 2006).

Opinions

JUSTICE McCULLOUGH

delivered, the opinion of the court:

Father George Radosevich, executor of the estate of Emma Hoemmen, deceased, appeals from the May 5, 2005, judgment of the circuit court of Macoupin County, awarding Emma Hoemmen (claimant) reasonable attorney fees and costs pursuant to her section 19(g) application for entry of judgment under the Workers’ Compensation Act (Act) (820 ILCS 305/19(g) (West 2002)) and interest pursuant to section 19(n) of the Act (820 ILCS 305/19(n) (West 2002)), arguing (1) the circuit court erred in not awarding claimant attorney fees for the arbitration proceedings and circuit-court proceedings in an amount that is usual and customary and (2) the circuit court erred in failing to award claimant proper interest on the workers’ compensation award. The Roman Catholic Diocese of Springfield, Illinois (employer), cross-appeals, arguing the circuit court erred in finding it refused to pay claimant’s workers’ compensation award. For the reasons that follow, we affirm in part, reverse in part, and remand with directions.

On August 31, 1999, claimant fell and suffered a comminuted humeral neck fracture to her left shoulder with displacement and varus angulation while working as a housekeeper for employer. On September 17, 2002, after a hearing, an arbitrator found claimant sustained injuries that arose out of and in the course of her employment with employer. Employer was ordered to pay claimant (1) temporary total disability (TTD) in the amount of $4,550, representing 37V7 weeks during which claimant was temporarily totally disabled, (2) permanent total disability (PTD) in the amount of $39,897.08, representing 120V7 weeks during which claimant was totally disabled and $332.08 per week thereafter, (3) maintenance in the amount of $34,720 and $120 per week thereafter, and (4) $120 per month for home health services. Employer was also ordered to provide claimant with the Care Link warning system. Neither party sought review of this award.

On October 25, 2002, employer’s attorney sent a letter to claimant’s attorney requesting social-security-number information for claimant. In addition, employer’s attorney reminded claimant’s attorney of a discussion where a lump-sum settlement had been proposed. Employer’s attorney stated it was her understanding that claimant’s attorney would be presenting the idea to claimant and would then respond to the request. Employer’s attorney stated she had not heard from claimant’s attorney in this regard.

On November 14, 2002, claimant’s attorney responded to employer’s attorney’s letter. Claimant’s attorney stated he had spoken with employer’s attorney’s voice mail or secretary in the past, stating claimant was not interested in a lump-sum-settlement offer, and he again reiterated his client’s disinterest in such a settlement at the present time. Claimant’s attorney demanded payment of the arbitrator’s award within one week.

On December 13, 2002, claimant filed an application for entry of judgment pursuant to section 19(g) of the Act, requesting attorney fees and costs for employer’s alleged refusal to pay the arbitration award. On January 2, 2003, a hearing was held on claimant’s section 19(g) application. On January 2, 2003, and January 3, 2003, employer issued payment to claimant totaling $84,307.65. On January 10, 2003, employer issued payment to claimant totaling $5,884.16.

On April 30, 2003, Judge Carmody issued a memorandum of decision, finding employer refused to pay the arbitration award. However, claimant’s request for $32,310.35 in attorney fees was found to be excessive and unreasonable. Instead, the circuit court awarded claimant $6,000 in attorney fees and $847.20 in interest. The court did not specify whether this award included attorney fees for both the arbitration proceedings and the circuit-court proceedings. The court ordered employer to prepare an order consistent with the court’s decision. Employer did not prepare an order as directed by the court.

On May 22, 2003, claimant filed a motion to reconsider. On July 10, 2003, the circuit court denied claimant’s motion. In doing so, the court stated that if it were required to award attorney fees in the amount of 20% of the arbitration award, “the court’s conclusion would then necessarily be that the delay by respondent in paying the award was not sufficiently egregious to constitute a refusal to pay the award.”

On September 3, 2003, claimant filed a rule to show cause regarding employer’s failure to submit an order consistent with the circuit court’s April 30, 2003, memorandum of decision. On January 8, 2004, the court denied claimant’s motion, finding that because of its July 10, 2003, ruling on claimant’s motion to reconsider, employer was no longer required to file an order consistent with the court’s original April 30, 2003, decision. The court found its July 10, 2003, decision to be a final order for the purposes of appeal. On January 15, 2004, claimant filed a notice of appeal from the court’s April 30, 2003, July 10, 2003, and January 8, 2004, decisions. On December 1, 2004, this court dismissed claimant’s appeal, holding the circuit court’s April 30, 2003, decision was not a final appealable order and remanding the case, directing employer to submit a final order to the circuit court consistent with its April 30, 2003, decision. Radosevich v. Roman Catholic Diocese of Springfield, No. 4 — 04—0038 (December 1, 2004) (unpublished order under Supreme Court Rule 23).

On remand, Judge Mitchell (Judge Carmody had since retired) entered a memorandum of decision, finding Judge Carmody’s decision awarding claimant $6,000 in attorney fees was not erroneous and no additional facts justified amending Judge Carmody’s decision. Judge Mitchell found section 19(g) of the Act did not mandate an award of 20% attorney fees but rather “reasonable” attorney fees. The court awarded claimant $6,000 in attorney fees and $847.70 in interest pursuant to section 19(n) of the Act. Employer submitted an order consistent with this memorandum of decision, and the court signed it on May 5, 2005. This appeal followed.

We first address employer’s motion to supplement the record on appeal or, in the alternative, motion to strike, which was ordered taken with the case. Employer seeks to supplement the record with a letter from its insurance company. Supreme Court Rule 329 provides that a party may supplement the record on appeal to include omissions, correct errors, and settle controversies as to whether the record accurately reflects what occurred in the trial court. 134 Ill. 2d R. 329. However, a party may only supplement documents that were actually before the circuit court. Anderson v. Financial Matters, Inc., 285 Ill. App. 3d 123, 130, 672 N.E.2d 1261, 1266 (1996). Employer admits the letter it wishes to submit was not before the circuit court. Therefore, its motion to supplement the record on appeal is denied.

In the alternative, employer wishes to strike portions of claimant’s brief, which states that employer has not paid interest on the arbitration award. “ ‘[T]he striking of an appellate brief, in whole or in part, is a harsh sanction and is appropriate only when the alleged violations of procedural rules interfere with or preclude review.’ ” In re Detention of Powell, 217 Ill.

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Cite This Page — Counsel Stack

Bluebook (online)
856 N.E.2d 1, 367 Ill. App. 3d 769, 305 Ill. Dec. 469, 2006 Ill. App. LEXIS 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/radosevich-v-industrial-commission-illappct-2006.